Hagan and Military Rehabilitation and Compensation Commission (Compensation)
[2018] AATA 4671
•21 December 2018
Hagan and Military Rehabilitation and Compensation Commission (Compensation) [2018] AATA 4671 (21 December 2018)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/3041
Re:Tracey Hagan
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:21 December 2018
Place:Brisbane
The application is remitted to the respondent for a period of 90 days under s 42D of the Administrative Appeals Tribunal Act 1975.
............................[SGD].......................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – Military compensation – claim for acoustic neuroma condition – whether development of condition was caused by applicant’s military service – whether the applicant had an inability to obtain appropriate clinical management – inadequate investigation of exposure of applicant to ionising radiation – application remitted under s 42D of the Administrative Appeals Tribunal Act 1975
LEGISLATION
Administrative Appeals Tribunal Act 1975
Military Rehabilitation and Compensation Act 2004CASES
Benjamin v Repatriation Commission [2001] FCA 1979
Brew v Repatriation Commission [1999] FCA 1246
Bushell v Repatriation Commission (1992) 175 CLR 408
Hay and Repatriation Commission [2009] AATA 883
Millen v Repatriation Commission (2000) AATA 508
QX07/1 and Military Rehabilitation and Compensation Commission (2007) 45 AAR 59; (2007) 94 ALD 750
Repatriation Commission v Money (2009) 173 FCR 410
Robertson v RC [2003] AATA 956
Trotter v RC [2000] AATA 766SECONDARY MATERIALS
Justice Garry Downes AM, "Why Does Australia Have a General Review Tribunal", Address to the New Zealand Chapter of the Council of Australasian Tribunals, 7 October 2005
Statement of Principles concerning Acoustic Neuroma No.29 of 2011
Statement of Principles concerning Acoustic Neuroma No. 30 of 2011
Veterans Entitlements and Military Compensation Law (3rd ed), Creyke, R and Sutherland, P, The Federation Press, 20 January 2016
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
21 December 2018
INTRODUCTION
The applicant in this matter, Ms Hagan, has submitted a compensation claim to the respondent for a brain tumour (or “acoustic neuroma”) condition. The applicant claims that the development of her brain tumour was caused by her full-time military service. There is specialist opinion that the condition was in existence during her full-time military service.
The applicant served in the Royal Australian Navy (“Navy”) from 13 February 1995 to 4 October 2005, and from 15 January 2007 to 15 January 2011, and attained the rank of petty officer. She resumed service as an active reservist on 15 March 2013 and remains a reservist within the Navy. The applicant’s service from 1 July 2004 to 4 October 2005 and 15 January 2007 to 15 January 2011 can be classified as “defence service” under s 6 of the Military Rehabilitation and Compensation Act 2004 (“the Act”); with the exception of her service from 6 May 2005 to 17 May 2005 on Operation Catalyst which is non-warlike service.
The applicant is now 44 years old and continues to suffer from the effects of the surgery undertaken to remove the acoustic neuroma in 2015.
This decision will consider whether the acoustic neuroma condition can be said to be caused by the applicant’s full-time military service.
THE CLAIM
On 28 May 2015 the applicant submitted a compensation claim under the Military Rehabilitation and Compensation Act 2004 (“the Act”) for a brain tumour (i.e. acoustic neuroma) condition. In an Injury or Disease Details Sheet dated 29 May 2015 completed by the applicant, the applicant outlined the following causal relationship between the development of her brain tumour and her military service: “excessive noises and possible RF exposure whilst serving on HMAS Canberra and HMAS Tobruk throughout my 20 year Navy career”.[1] The applicant stated that she first began to notice signs or symptoms of the condition on 9 May 2002. The signs and symptoms of the condition were given as, “Dizziness, numbness on right side of face and tongue. Deafness in right ear.” The date of diagnosis was listed as 22 May 2015, but the applicant also stated that the approximate date of onset was 6 to 7 months before this.
[1] Exhibit A, T-Documents, T8, at p. 28.
On 22 July 2015 the respondent made a decision to deny liability for compensation for this condition.
The applicant then requested a reconsideration of this decision. On 4 March 2016 the respondent affirmed the determination dated 22 July 2015, on the basis that the applicant did not satisfy any of the factors in the relevant Statement of Principles (“SoP”).
On 9 June 2016 the applicant lodged an application for review of a decision with this Tribunal.
LEGISLATIVE FRAMEWORK
Section 27 of the Act provides that the claimed condition must be a “service injury” or “service disease” to be compensable. A “service disease” must have:
(a)resulted from an occurrence that happened while the person was a member rendering defence service;
(b)arose out of, or was attributable to, any defence service rendered by the person while a member;
…
(d) (i) been sustained or contracted while the person was a member rendering defence service, but did not arise out of that service
Section 338 of the Act provides that for a claim for an injury or disease that relates to non-warlike service, the reasonableness of a hypothesis is to be assessed by reference to a Statement of Principles. Section 339 of the Act provides that, for a claim for an injury or disease that relates to peacetime service, as is the case here, the decision-maker must determine the matter to their reasonable satisfaction, and in doing so must have regard to any relevant Statement of Principles (“SoPs”) that are in force. It must be determined whether, on the balance of probabilities, the claimed condition is connected with the applicant’s military service.
During this review process there has been some confusion as to which SoP is relevant. The original decision-maker referred to Instrument no. 29 of 2011. However, Instrument no. 30 of 2011 also has relevance as it relates to the majority of the full-time military service of the applicant.
The relevant factors that have been raised from both SoPs are factors 6(b) and 7. Factor 6(b) states:
6. The factor that must exist before it can be said that, on the balance of probabilities, acoustic neuroma or death from acoustic neuroma is connected with the circumstances of a person’s relevant service is:
…
(b) inability to obtain appropriate clinical management for acoustic neuroma.
Factor 7 states:
7. Paragraph 6(b) applies only to material contribution to, or aggravation of, acoustic neuroma where the person’s acoustic neuroma was suffered or contracted before or during (but not arising out of) the person’s relevant service.
EVIDENCE
Medical history
The service medical records of the applicant refer to several presentations of dizziness and headaches over the course of the applicant’s full-time service in the Navy. These presentations were often accompanied by several other symptoms. These instances include:
·25 June 1995 – the applicant presented with a sore throat and dizziness.[2] During 1995 and 1996 the applicant was diagnosed with tonsillitis approximately seven times;[3]
·3 July 1997 – the applicant presented with lethargy and light headedness;[4]
·23 February 2001 – the applicant presented with dizzy spells, diarrhoea and hot flushes, and was treated symptomatically;[5]
·20 March 2002 – the applicant reported suffering “lifelong faints/near faints” and frequent dizzy spells, and was referred to a cardiologist;[6]
·9 May 2002 – Dr Lim, cardiologist, provided a report regarding the applicant’s frequent dizzy spells. The applicant reported to Dr Lim that her symptoms initially occurred at age 15 when she passed out during a parade. She also reported intermittent dizziness in her youth, which usually occurred after long-distance running. More recently she experienced 1-2 attacks of dizziness per month, during hot weather or after a hot shower. Dr Lim opined that the applicant’s dizziness was likely related to her baseline low blood pressure and significant postural changes;[7]
·19 June 2002 – the applicant attended a further medical appointment following her consultation with Dr Lim. Her “dizzy spells” were noted as having “improved”;[8]
·16 September 2002 – the applicant presented with having experienced 2 days of nasal congestion, sore throat and headaches, and was treated symptomatically;[9]
·21 October 2004 – the applicant presented with a painful right ear. She was found to have a small pimple and cut on the inside of the ear canal and an infection in her right ear;[10]
·13 June 2005 – the applicant presented with a 3 week history of having a cough, hot/cold sweats, headaches and a general feeling of being unwell;[11]
·30 September 2009 – while pregnant with her second baby the applicant had an episode of feeling faint and having a “white flash” in front of her eyes, and was also experiencing sneezing, aching and back pain. The faint feeling passed after sitting down.[12]
[2] Exhibit C, Service Medical Records Part 2, at p. 596.
[3] Exhibit C, Service Medical Records Part 2, at p. 594-597.
[4] Exhibit C, Service Medical Records Part 2, at p. 590.
[5] Exhibit C, Service Medical Records Part 2, at p. 577.
[6] Exhibit C, Service Medical Records Part 2, at p. 574.
[7] Exhibit C, Service Medical Records Part 2, at p. 441.
[8] Exhibit C, Service Medical Records Part 2, at p. 570.
[9] Exhibit C, Service Medical Records Part 2, at p. 596.
[10] Exhibit C, Service Medical Records Part 2, at p. 559.
[11] Exhibit C, Service Medical Records Part 2, at p. 555.
[12] Exhibit C, Service Medical Records Part 2, at p. 543.
On 3 April 2003 the applicant underwent an Annual Health Assessment, and on this form it was reported that the applicant had “Hearing Standard 1”.[13]
[13] Exhibit C, Service Medical Records Part 2, at p. 424.
On 31 August 2005 the applicant underwent an audiogram, and the Hearing Conservation Report showed a significant threshold shift of 15db or greater. The form indicated that this “requires clinical assessment”. In accordance with this, the audiometer operator’s comments noted: “pls r/v audio >15”. The medical officer ticked “no further action” and signed the form with no other comment.[14]
[14] Exhibit C, Service Medical Records Part 2, at p. 395.
Also on 31 August 2005, a Five Yearly Comprehensive Preventive Health Assessment was conducted and the applicant was reported as demonstrating “Hearing Standard 1”. On this form the applicant indicated that she did not have any hearing problems, but did note that she had been suffering from dizzy spells, amongst other medical complaints.[15]
[15] Exhibit C, Service Medical Records Part 2, at pp. 386 and 390.
On 23 January 2007 another Five Yearly Comprehensive Preventive Health Assessment was conducted after the applicant recommenced full-time service in the Navy.[16] At this time the applicant indicated that she had no hearing problems and was not suffering from dizzy spells.
[16] Exhibit C, Service Medical Records Part 2, at p. 373.
On 24 January 2007 an audiogram was conducted. The Hearing Conservation Report showed a significant threshold shift of 15db or greater in the left ear.[17] The medical officer commented “normal audiogram” and signed the form.
[17] Exhibit C, Service Medical Records Part 2, at p. 383.
Further Annual Health Assessments conducted with the applicant on 4 February 2008 and 10 November 2008 revealed that the applicant had no health concerns at that time.[18]
[18] Exhibit C, Service Medical Records Part 2, at pp. 367-368 and 353-354.
On 12 August 2010 an audiogram was conducted, and the Hearing Conservation Report showed no significant threshold shift of 15db or greater in either ear.[19]
[19] Exhibit B, Service Medical Records Part 1, at p. 311.
In a specialist report dated 28 September 2010 it was noted that the applicant had a long history of dizzy spells, and the applicant had reported that she lost consciousness on one occasion in 1998.[20]
[20] Exhibit B, Service Medical Records Part 1, at pp. 301-302.
A Comprehensive Preventive Health Assessment performed on 4 October 2010 indicated that the applicant still had “Hearing Standard 1”.[21]
[21] Exhibit B, Service Medical Records Part 1, at p. 292.
On 25 May 2015 a CT scan was performed on the applicant.[22] The results of this scan noted that the applicant had been experiencing numbness on the right side of her face for 4 months. It was found that the applicant had a mass on her brain measuring 27 x 21 x 21mm, which was most likely an acoustic neuroma. A follow-up MRI and referral to a skull base specialist was recommended.
[22] Exhibit A, T-Documents, T16.
An MRI performed on 27 May 2015 found that the mass more accurately measured 24 x 18 x 21mm, and was consistent with a moderate volume right acoustic neuroma.[23]
[23] Exhibit A, T-Documents, T17.
On 11 June 2015 Dr Adel Helmy, a neurosurgical skull base fellow at the Princess Alexandra Hospital (“PA Hospital”), gave a report regarding the applicant’s acoustic neuroma. Dr Helmy noted that the applicant had experienced “two to three years of decreasing hearing on the right hand side and more recently over the past four month (sic) or so, numbness across the whole right side of her face”.[24] Dr Helmy also noted that these symptoms precipitated a visit to the applicant’s GP, who organised a CT scan. It was reported that the applicant was completely deaf in the right ear but her facial nerve function was normal.
[24] Exhibit A, T-Documents, T19, at p. 64.
Dr Helmy’s report also stated that it was “likely this tumour has been there for some time and may have coincided with her hearing loss from several years ago”. He noted that he outlined three treatment options to the applicant: watch and wait, radiotherapy and surgery. He recommended surgery given the size of the tumour and the applicant’s young age.
Dr Aaron Griffin, an ENT specialist at the PA Hospital, examined the applicant along with Professor Panizza, and provided a report dated 25 June 2015.[25] Dr Griffin noted the applicant’s symptoms of a numb and weak face on the right side for the past two months, and right-sided hearing loss, tinnitus and vertigo for the past two years “on and off”. It was noted that Professor Panizza had discussed the risks of surgery with the applicant and that she would be booked in for the surgery.
[25] Exhibit A, T-Documents, T20.
On 25 June 2015, a Medical Employment Classification Review (“MECR”) was conducted on the applicant.[26] It was noted that this was the applicant’s first “PHE” since September 2010, when she was discharged from the permanent Navy. It was also recorded that the applicant had been diagnosed with a right-sided acoustic neuroma, which was discovered by an MRI following a referral from her civilian GP.
[26] Exhibit A, T-Documents, T21.
On 27 October 2015 Dr Alex Bordujenko, a Departmental Medical Adviser, completed a report at the request of the respondent, as a result of the applicant’s compensation claim for the acoustic neuroma.[27] The report commented that in its early stages, an acoustic neuroma can present similar symptoms to other, less serious conditions, which may delay diagnosis and treatment.
[27] Exhibit A, T-Documents, T25.
Dr Bordujenko reviewed the applicant’s medical history and determined that the reported episodes of headache and dizzy spells occurred in the setting of other illnesses such as respiratory tract infections or gastrointestinal upset, and were accompanied by other symptoms. The applicant attended medical defence staff for a range of conditions over the years and had many other illnesses during this period, all of which appear to have been dealt with appropriately Dr Bordujenko noted the applicant’s history of dizzy spells started at around age 15.
Dr Bordujenko opined that “there is nothing in [the applicant’s] presentations for medical assistance between 1993 and 2005 which would indicate the presence of an acoustic neuroma or indeed alert a practitioner to further investigate an intracranial cause for her symptoms”.[28] Further, there was nothing in the applicant’s audiograms from 1993 to 2010 which would indicate the presence of unilateral hearing loss or the presence of an acoustic neuroma.
[28] Exhibit A, T-Documents, T25, at p. 77.
The applicant completed a Member’s Health Statement on 28 June 2016 as part of a MECR.[29] In this statement the applicant stated her belief that her acoustic neuroma was present prior to her discharge from the permanent Navy, and was undiagnosed due to the Navy not following correct procedures. She stated that she should have been considered for a CT scan or MRI on discharge or during her full-time service. The applicant stated “I strongly believe I have been inappropriately managed regarding my health issues”. Later in the form the applicant also commented that her condition was evident from 2002, based on her history of reporting symptoms of dizzy spells and headaches, and on the hearing differences on the audiograms conducted.
[29] Exhibit B, Service Medical Records Part 1, at p. 100.
The applicant’s evidence
The applicant submitted an undated statement in support of the claim, which appears to have been lodged during the claim process with the respondent.[30] In this statement the applicant referenced her service in the Navy as being for the past 20 years, since 1995 when she first enlisted. The applicant states her belief that her brain tumour condition is related to her service in the Royal Australian Navy. She referenced being exposed to dangerous levels of noise from constant alarms, engine room noise and general equipment such as industrial air-conditioning, as well as being exposed to high levels of radio frequency hazards.
[30] Exhibit A, T-Documents, T26.
The applicant also stated her belief that she first had indication of her tumour in 2002; it was during this period that she sought help at HMAS Cairns medical. At this time she was suffering from dizzy spells. Doctors assessed her blood pressure, heart and colon but did not conduct enquiries specifically relating to a possible tumour.
The applicant has stated that she believes she should have also undergone medical tests when she was transferred to the Active Reserve in 2011. She had again complained about suffering from frequent dizzy spells, and was referred for specialist consideration for blood pressure.
When asked about the military medical process at the hearing, the applicant advised that as a full-time member of the Navy she was not allowed to seek medical treatment outside of the Defence Force. She advised that, while in the Navy, she was not referred for any follow-up investigations regarding her symptoms of dizziness and loss of hearing.
When giving evidence the applicant spoke about the events leading up to the diagnosis of her brain tumour. In May 2015 she had noticed the right side of her face was “quite numb” and she realised it was not getting better. At this stage she was in the Reserve and as such was responsible for seeking her own medical treatment. She went to see her GP, Dr Sharma, and Dr Sharma referred her for a CT scan. The applicant advised that Dr Sharma is no longer in Australia.
The applicant gave evidence that the surgery to remove her tumour took place on 21 August 2015. She now suffers from vestibular ocular reflex damage, (i.e. she cannot blink her right eye anymore) tinnitus and vertigo, and is completely deaf in her right ear.
Under cross-examination the applicant agreed that she first noticed symptoms of her condition on 9 May 2002, which was the date provided on the Injury or Disease Details Sheet that she filled out as part of her claim. These symptoms were dizziness and headaches. The applicant was referred to a report of Dr Chin Lim, cardiologist, of 9 May 2002, and when asked whether she found the treatment of Dr Lim to be inappropriate she stated “No, not at all.”
The applicant was then asked about the report of Dr Helmy, neurosurgical skull base fellow, dated 11 June 2015, which stated that the applicant had experienced two to three years of decreasing hearing in her right ear, and face numbness on the right side over the past four months. It was also reported that the applicant suffered from tinnitus in her right ear. When asked about the length of time that she had suffered tinnitus, or ringing in her right ear, the applicant was unable to comment. Symptoms of giddiness or unsteadiness on her feet, impaired coordination in the right hand and tingling in the toes of her left foot were also reported. The applicant advised she had been suffering from giddiness for at least five to ten years, impaired coordination in her right hand for about five to six months, and tingling in her left foot for a few years.
When asked under cross-examination about her service in the Navy, the applicant quite properly accepted that there was no record of an annual health check or any other medical treatment by the ADF between September 2010 and June 2015.
At the hearing the applicant was also asked about the comments in the report of Dr Lim regarding two instances of dizziness in her teenage years.[31] The applicant agreed with her representative that these were the only instances of dizziness in her youth.
[31] Exhibit A, T-Documents, T15, at p. 48.
Dr Elizabeth Rushbrook
Dr Elizabeth Rushbrook provided a statement dated 22 November 2017, and also gave evidence at the hearing. Dr Rushbrook performed service in the Navy as a doctor from 1997 and 2016. She attained the rank of Commodore. In her statement Dr Rushbrook made clear that her statements were made in her capacity as a civilian, and did not represent the views of the Department of Defence.
Dr Rushbrook’s statement noted that audiograms are recorded on form PM139, and instructions on that form require further enquiries to be made if there is a significant threshold shift of 15db or greater. From there, a repeat audiogram is required, usually within a week or two, and if that repeat audiogram records a shift of 15db or greater, then assessment by a medical officer is required to determine if further action is necessary.
Dr Rushbrook noted that the 31 August 2005 audiogram showed a 15db shift in the right ear, and the 22 January 2007 audiogram showed a 25db shift in the left ear. She commented that in both of those situations she would have normally expected that there would be a record of history and examination of the ears and consideration of the cause of the shift in the left ear. Dr Rushbrook confirmed that the audiogram conducted in 2010 was normal (i.e. it recorded no significant db shift).
The statement of Dr Rushbrook finished with her statement that she was “unable to properly hypothesise if further clinical examination had been undertaken in 2005 and 2007 that radiology testing would have eventually occurred. Similarly, I am unable to properly hypothesise that any such radiology testing would have revealed an acoustic neuroma. These are matters for experts to consider.”
When giving evidence Dr Rushbrook was asked about any reason why a further follow up would not have been conducted given the outcome of the 2005 and 2007 audiograms. Dr Rushbrook stated that she didn’t know the reason why it didn’t occur, but she couldn’t find any evidence that it had occurred. When questioned further about the process Dr Rushbrook also stated that it was not mandatory for a medical officer to record their findings on the PM139 form; they could record their findings on another form or report.
Under cross-examination Dr Rushbrook agreed that in fact there had been a follow up done on the 2005 audiogram, as the tester noted “Please review audio greater than 15” and the signed medical officer’s report ticked a box stating “No further action”.
Professor Benedict Panizza
Professor Panizza is the Director of Otolaryngology at the Princess Alexandra Hospital. He provided a letter at the request of the applicant dated 23 March 2017. In this letter Professor Panizza stated that when the applicant was seen on 18 June 2015 she had complained of face and tongue numbness over a two to three month period, and some dizziness and decreased hearing in her right ear with some tinnitus over a two to three year period. He stated that an audiogram conducted on the applicant prior to her surgery on 21 August 2015 showed that she had normal hearing in her left ear and moderately severe low frequency to high frequency sensorineural hearing loss on the right ear. He observed that a follow up MRI performed on 30 September 2016 showed no evidence of any residual tumour.
Professor Panizza stated that if a patient presented with significant hearing loss over a period of years then an MRI should be undertaken. Given the size of the tumour at the time it was detected, he estimated that the tumour was probably present in January 2011. At this stage he considered that an MRI would likely have picked the tumour up. Professor Panizza also stated that had the tumour been detected earlier the applicant may have been offered alternatives to surgery such as a period of observation or radiation. As it was the options presented to the applicant were radiation and operative intervention.
Dr Damian Amato, neurosurgeon
Dr Amato was the neurosurgeon responsible for operating on the applicant’s tumour. In his report of 13 July 2017 he concluded that it would have been “entirely appropriate and reasonable to expect that she would be sent for further investigation including either a CT or MRI scan of her brain”. Dr Amato stated that if that had occurred, the tumour would have been diagnosed. He opined that further investigations ought to have been reasonably undertaken and a CT or MRI scan would have been the prudent option.
Dr Amato also provided a letter in the form of answers to questions posed by the applicant, and confirmed at the hearing that it was his hand-writing on the form.[32] In this letter he stated that given the size of the tumour it is “highly likely” that the tumour was present prior to 2011. He stated that it was “very likely” the tumour would have been identified on a scan at this time. When asked to comment on the reasonable expectation of being referred for a CT or MRI in light of the applicant’s symptoms, Dr Amato commented that, “the exact clinical presentation at the time on each individual occasion may not have warranted a scan”. He also stated “Repeated presentation adds strength to the argument that a scan was reasonable.” In response to a question about whether there was an inability to obtain appropriate clinical management due to not having the condition identified earlier, Dr Amato stated that the documents provided “show longstanding dizziness type symptoms which are often non-specific. The audiogram results require ENT opinion regarding appropriate clinical management.” When asked whether a complicated 14 hour surgery could have been avoided by earlier diagnosis, Dr Amato stated that “the size of the tumour may have been smaller if discovered sooner. In that circumstance surgery may have been less complicated and other options such as radiation may have been appropriate.” Dr Amato also commented that, “the risk to facial nerve function increases as the size of the tumour increases.”
[32] Exhibit G, report of Dr Amato filed 20 February 2017.
When giving evidence at the hearing Dr Amato discussed the likely outcomes for the applicant regarding her tumour being picked up earlier as opposed to later. He confirmed that a smaller tumour enables different treatment options to be available, including observation or radiation. He stated that the potential outcomes from that are generally better than surgery for smaller tumours. He also stated that a smaller tumour means the surgery will be less difficult, which in turn means that the facial nerve is easier to protect; therefore the outcome for facial nerve function is better for smaller tumours. Dr Amato advised that in the applicant’s case the tumour was quite large and an unusual shape, with a significant impression where the facial nerve emerged, so the surgery had a higher risk of her having a poor facial nerve outcome, which did ultimately occur.
Dr Amato gave evidence that a CT or MRI can result in the early diagnosis of a tumour. He agreed with the applicant’s representative that a large number of tumours are picked up in the early stages, and are sometimes discovered incidentally. He also agreed that loss of hearing is one of the major triggers that leads to diagnosis of an acoustic neuroma.
When asked about the likely date of onset of the tumour, Dr Amato stated that this is quite a large window of time. He explained that it is common for tumours to show no growth over many years. He also clarified that if there is growth, it is usually seen at an average of around 1 to 2 millimetres per year. In this case, the applicant’s acoustic neuroma would have likely been present for “many years”. However, under cross-examination Dr Amato conceded that it is possible the tumour was not present at the time of the audiogram in 2005. Dr Amato was then asked for further clarification on this issue in re-examination, and stated that while it was possible, it is extremely unusual for tumours of such a large size to have developed over a short period of time and so it is “probable” that the tumour was present prior to 2011.
Dr Amato agreed with the applicant’s representative that the tumour could have been present for years but not causing any issues for many years. Notwithstanding this he recalled that the applicant experienced some asymmetric, or one-sided, hearing loss which would be potentially concerning. He stated that “an ENT specialist would be better to make a comment about the audiograms and whether that would represent the establishment of a vestibular schwannoma or whether that would require a scan based on the audiograms…”
When asked to comment on the changing outcomes in the audiograms, Dr Amato opined that this represents a variation in the testing rather than accurately reflecting the applicant’s hearing. He expressed his suspicion that any improvements were probably not correct readings. He again deferred to ENT specialists, who would be better able to comment on the audiogram results.
When asked during cross-examination about the records he had access to, Dr Amato recalled that he had 2001, 2005 and 2007 audiograms, as well as other notes from attendances to the medical officer regarding dizziness and headaches, but he conceded that he did not have access to her complete medical record. When specifically asked about the Five Yearly Comprehensive Preventive Health Assessment record where the applicant answered “No” to the question “Do you experience any problems with your hearing?”[33], Dr Amato advised that he had not seen that document. Dr Amato also did not recall seeing the 2010 audiogram report.
[33] Exhibit C, Service Medical Records Part 2, at p. 386.
In response to a question about the 2005 audiogram Dr Amato explained that where any discrepancy of 15db or more was present he would consider this worthy of further review, but as to the significance of this outcome he would defer to an ENT specialist.
Dr Amato was also asked about the report of Dr Adel Helmy.[34] He advised that Dr Helmy assisted on the applicant’s surgery with him, so he was aware of the history Dr Helmy took.
[34] Exhibit A, T-Documents, T19, at p. 64.
Dr Zuzana Dreves, general practitioner
Dr Dreves provided a letter dated 23 June 2016 which stated that the applicant had an acoustic neuroma which occurred while she was in the ADF. She stated her professional opinion that there was an inability to obtain appropriate clinical management for the acoustic neuroma whilst in service from 1995 to 2011.
Under cross-examination Dr Dreves was asked why she stated that there was an inability to obtain appropriate clinical management, and she cited the long delay between the diagnosis and the surgery. When asked about this delay, Dr Dreves stated that to her understanding the diagnosis occurred around 2003, and the surgery took place in 2015. Dr Dreves was also asked about when she thought the applicant should have had the surgery, and she stated that she didn’t know because she was not a specialist.
Dr Dreves was cross-examined on what specific instances she considered to be inappropriate clinical management, and she stated that it was a lack of management which was the issue, rather than inappropriate management. She was unable to highlight a particular consultation when the condition should have been diagnosed, as she did not meet the applicant until more recently.
Dr Leigh Atkinson, neurosurgeon
Dr Atkinson provided a report dated 16 September 2016 at the request of the respondent. In his report Dr Atkinson confirmed that he had reviewed the applicant’s clinical records for the period of 1995 to 2010, and outlined in detail his summary of this information. He noted that during this period the applicant had multiple presentations to the military’s medical staff, and suffered multiple medical conditions including dizziness, which dated back to the age of thirteen.
It is the conclusion of Dr Atkinson that the applicant had “reasonable medical investigations of the reported symptomatology”, and the applicant was “appropriately assessed and correctly treated”.[35] He considered that during the period of 1995 to 2010 there was no need for further medical investigations on the symptoms related to her head and ear. He further considered that there is no indication further investigations would have led to the earlier diagnosis of the applicant’s brain tumour.
[35] Report of Dr Leigh Atkinson, at pp. 3 and 12.
Dr Atkinson gave evidence at the hearing. When asked about the speed at which these tumours usually grow, he stated that they are “notorious for being very slow growing”. He explained that they usually grow between one to four millimetres per year. While some stay dormant and don’t grow at all, occasionally they can grow much more rapidly. Dr Atkinson identified that these tumours are a cause of concern because people can feel like they have been missed, but in reality they are quite silent.
Dr Atkinson gave evidence that the applicant’s reported symptoms would usually be investigated with an audiogram, and also with an MRI. He noted that even with an MRI tumours can still be missed. He also stated that acoustic neuromas are also missed on CT scans “quite frequently”. He explained that an MRI is more accurate.
In regards to the 2005 audiogram, Dr Atkinson was asked to comment on the significance of the findings in that report. He stated that he did not find the results significant. When asked about the result of the 2010 audiogram, which returned a normal result, Dr Atkinson stated that he wouldn’t request further examination as a result of those findings.
Under cross-examination Dr Atkinson provided some general information on the differences between intervention for small and large tumours. He stated that it depends on the age of the patient and how quickly the tumour is growing, but agreed that an operation on a smaller neuroma is likely to be less complicated than an operation on a larger neuroma. He was unable to provide a window of time during which the applicant’s tumour might have developed, as its rate of growth was unknown. He agreed that it was plausible that the tumour was present in 2010.
When asked to comment on the applicant’s symptoms, Dr Atkinson stated that the applicant had a “constellation of symptoms” including tonsillitis, diarrhoea, abdominal pain, anxiety, dizziness and deafness. He stated that a “retrospective bias” may exist and needs to be considered. He further stated that deciding whether or not to conduct further investigations on particular symptoms was a complex issue, and medical professionals had to use judgement on how far to go with investigations for the applicant’s different conditions.
SUBMISSIONS
There is no dispute between the parties that the applicant suffers from a right-sided acoustic neuroma which was first clinically diagnosed on 25 May 2015 following a CT scan. What is in dispute is when this condition may have first become evident, whether the applicant’s medical history with the Navy reflects inappropriate management of her health concerns, and whether the applicant had an inability to obtain appropriate clinical management in the circumstances.
It should be noted that at the hearing of this matter the respondent raised concerns about the applicant’s failure to particularise the scope of her claim, particularly in relation to when further investigations should have taken place.
It should also be noted that at the hearing the applicant’s representative clarified that the scope of the claim was confined to issue with the audiograms conducted on the applicant, but the applicant’s submissions in reply appear to allege that the audiogram equipment was faulty or that the audiology reports were inconsistent, and it is argued that this also should have resulted in a referral for further specialist treatment. The respondent has submitted that the applicant should be bound by her initial submission as to the scope of her case.
Audiogram results
The applicant’s submissions
The applicant submissions refer to a series of audiograms that were conducted between 2005 and 2010 which showed a 15db hearing loss in the right ear, and which also included reports of dizziness.
With regards to the 2005 audiogram, the applicant has pointed out that the medical officer’s comments are blank, however the form is signed and dated. On the 2007 audiogram, the applicant concedes a normal reading is shown but the form has clearly ticked “Yes” to the question “is there a significant shift of 15db or greater”.
The respondent’s submissions
The respondent’s submissions also addressed the results of these audiograms. They sought to clarify that the 2005 audiogram revealed a change of greater than 15db for both the right and left ears at the 6000 decibel level only. They also noted that the audiogram operator sought a medical officer’s opinion on the results of this test, and the medical officer determined that no further action was required.
The respondent has highlighted that Dr Amato’s report does not directly comment on the results of this audiogram, and he was not asked about this by the applicant’s representative when giving evidence. However, under cross-examination Dr Amato conceded that it was “possible” that the neuroma was not present at the time of the 2005 audiogram. Dr Amato declined to offer a specific opinion on any of the audiograms on the basis that he was not a qualified ENT specialist.
The respondent has submitted that Dr Atkinson’s report stated that the 2005 audiogram showed no indication of an acoustic neuroma. When giving evidence at the hearing, he explained that as the result related to both ears the result was not significant.
The respondent has also addressed the Five Yearly Comprehensive Preventive Health Assessment which was conducted on the same day as the audiogram, on 31 August 2005. In this form the applicant specifically denied any problems with her hearing.
The submissions of the respondent addressed the 23 January 2007 audiogram. They submitted that the results of this test were normal and would not have prompted any further investigation, which was confirmed by Dr Atkinson in his report.
With regards to the 2010 audiogram, the respondent submitted that there has been no suggestion by the applicant that this test produced a result that was anything other than normal. There was nothing contained in the findings that would prompt further investigations. Dr Atkinson also confirmed that these test results were normal in his report.
The respondent has also sought to correct the submissions of the applicant insofar as they alleged that the hearing tests conducted on the applicant included reports of dizziness. They submit that there is no evidence that to effect.
Appropriate clinical management
The applicant’s submissions
It is the applicant’s contention that the results of the 2005, 2007 and 2010 audiograms, along with her reported symptoms of hearing loss, dizziness and ringing in the ears, should have triggered a referral to a medical professional in accordance with Chapter 4 of the “Defence Health Manual”. It is argued that this referral would have led to investigations by an ENT specialist or similar, which would have resulted in an MRI and the early diagnosis of the acoustic neuroma. The applicant contends that there is an expectation that all available diagnostic tools should have been used to clarify the cause of the applicant’s symptoms.
The submissions of the applicant state that factor 6(b) of the SoP is met as the only medical opinion sought by the Navy was that of a compensation medical adviser with no neurological background.
The applicant submits that early intervention on the applicant’s condition would have resulted in an earlier and less complex surgery, or an ability to pursue alternatives such as radiation or medication. She also submits that early intervention would have made less likely the complications of complete hearing loss in the right ear, facial nerve damage and facial palsy, vertigo, extreme tinnitus, vestibular ocular reflex damage, neck and shoulder pain and severe headaches, all of which she suffers now as a result of the surgery she underwent.
The applicant has referred to the evidence of Professor Panizza, which was that the acoustic neuroma would have been present for many years and an earlier scan would have probably led to an earlier diagnosis. Professor Panizza has also stated that it would have been reasonable for the applicant to be referred to a specialist and for a scan to be conducted.
The applicant also relies on the cross-examination of Dr Atkinson, when he agreed that if a CT or MRI were performed earlier the tumour would likely have been diagnosed earlier, and an early diagnosis would have provided an opportunity to pursue alternative, less invasive treatments.
The applicant also took issue with the fact that a further CT scan was not conducted to confirm the diagnosis from the MRI in 2015.
The respondent’s submissions
The respondent submits that the weight of medical evidence supports a finding that:
a)All reasonable medical investigations were undertaken; and
b)There were no further medical investigations that reasonably ought to have bene undertaken that would have led to an earlier diagnosis.
The respondent contends that, where there is a difference of opinion amongst the medical experts, the evidence of Dr Atkinson ought to be preferred over that of Dr Amato and Professor Panizzo, as Dr Atkinson has had the benefit of reviewing the applicant’s comprehensive medical records and reports.
The respondent concedes that the evidence from Dr Amato and Professor Panizzo states that the applicant’s condition was present prior to being diagnosed on 25 May 2015, and that had a CT scan or MRI been undertaken earlier her condition may have been diagnosed earlier. However, the respondent submits that this evidence does not support a finding that the assessments and treatment provided to the applicant upon her presentations for illnesses during her military employment were not appropriate. Further, the respondent submits that this evidence does not seek to suggest that the medical investigations undertaken by ADF medical officers during the applicant’s service were unreasonable or inappropriate.
The respondent submits that the applicant’s ongoing concern of dizziness was actually specifically addressed prior to her discharge in February 2011. At this time she was subjected to a range of medical examinations and tests, and this resulted in a referral to a specialist, Dr Atkins.[36] The results of this specialist investigation were discussed with the applicant.[37]
[36] Exhibit B, Service Medical Records Part 1, at p. 306.
[37] Exhibit B, Service Medical Records Part 1, at p. 294.
The respondent also referred to the 2015 report of Dr Helmy, which recorded that the applicant provided him with a history of “2-3 years of decreasing hearing on the right hand side”. As the applicant was discharged from the Navy on 15 January 2011 and re-joined as a reservist on 19 March 2013, the onset of hearing loss which ultimately led to the diagnosis occurred when the applicant was not serving in the Navy.
The respondent addressed the applicant’s submission that there was a breach of the Defence Health Manual with regard to a lack of steps taken after the 2005 audiogram, noting that the applicant failed to specify the nature of the breach. The respondent submits that even if there were a breach, this would not be relevant to the SoP.
It should be noted that with respect to the evidence of Dr Dreves and Dr Rushbrook, the respondent submits that this is not particularly relevant to the issues in this matter. Dr Rushbrook ultimately deferred to the “experts” as to what was appropriate clinical management, and some of the evidence of Dr Dreves was factually incorrect (to the extent that she believed there was a significant delay between diagnosis and treatment of the neuroma).
Inability to obtain appropriate clinical management
The applicant’s submissions
The applicant has claimed that there was a material worsening of the acoustic neuroma as a result of her inability to obtain appropriate clinical management. The submission of the applicant that there was an “inability” appears to be primarily based on the contention that, as a permanent serving member of the Navy at all relevant times, her medical treatment was provided solely by the Navy and no outside treatment was able to be sought.
The respondent’s submissions
The respondent has submitted that the applicant’s case is focused purely on the contention that the acoustic neuroma was present in the right ear as long ago as 2005, and that there was inappropriate clinical management, rather focused on addressing an inability to obtain appropriate clinical management. As this is not within the scope of the relevant SoP, the respondent submits that the applicant’s claim cannot succeed.
The respondent has sought to respond to the applicant’s claim that she was unable to seek outside medical treatment during her military career. They submit that this claim completely ignores the fact that the applicant was not undertaking military service for two substantial periods of time (from 5 October 2005 to 15 January 2007, and from 16 January 2011 to 15 March 2013); as such it was open to the applicant to seek alternative medical treatment during these periods.
The respondent considers that the word “inability” in factor 6(b) of the SoP has been interpreted to mean that there must be some “service related impediment” to the provision of appropriate clinical management.[38] In Brew v Repatriation Commission [1999] FCA 1246, Sundberg J considered that the word “inability” refers to an objective barrier to obtaining treatment such as the absence of medical officers, not to a lack of willingness to obtain treatment.[39]
[38] Robertson v RC [2003] AATA 956 at [13] and Trotter v RC [2000] AATA 766.
[39] At [10].
Millen v Repatriation Commission [2000] AATA 508 concerned a claim for an asthma condition, which was based on an SoP factor which is in the same terms as the relevant SoP for this matter: “inability to obtain appropriate clinical management”. The Tribunal commented that:
“Whether or not the early diagnosis and treatments were correct for Mr Millen’s condition at the time is, in our opinion, irrelevant. The paragraph does not invite an inquiry as to the appropriateness of a claimant’s clinical management. It requires a claimant to show an inability to obtain that management.” [22]
The respondent noted that this case is not binding on the Tribunal, but the decision is cited with approval by the authors Creyke and Sutherland in Veterans Entitlements and Military Compensation Law.[40]
[40] Federation Press Third Edition at p. 765 and 767.
The respondent submits that there is some debate as to whether the acoustic neuroma was present at the time of 2005 audiogram, and notes that Dr Atkinson cast doubt on this. The respondent considers that the main problem in this respect is that if the neuroma was present then, and continued to grow, it would have resulted in abnormal audiograms in 2007 and 2010, but the results of both of these audiograms were normal for the right ear.
As factor 7 of the SoP requires some evidence which, at a minimum, establishes that the neuroma was present on 31 August 2005 before factor 6(b) can be applied, the respondent contends that the later normal audiograms make such a finding impossible. As factor 7 cannot be met, factor 6(b) can therefore not be applied.
If it is accepted that factor 7 is satisfied, then in the alternative the respondent submits that there has not been any clinical mismanagement of the applicant in relation to the audiogram of 31 August 2005 or her complaints of dizziness prior to 2011.
CONSIDERATION
There is no issue that the applicant had an acoustic neuroma condition. Dr Amato gave evidence that the applicant had an acoustic neuroma which he also referred to as a vestibular schwannoma. This condition comes within the definition of an acoustic neuroma in clause 3 (b) of both SoPs.
Having regard to clause 7 of both SoPs, I rely upon specialist medical evidence to find that I am reasonably satisfied that the applicant “suffered” an acoustic neuroma condition during her relevant service. Dr Amato gave evidence that it was probable that the condition was present before 2011. Dr Atkinson also gave evidence that it is plausible that the condition was present in 2010. Both these specialists gave evidence that it is usual for these tumours to grow over a long period of time. Professor Panizza has confirmed that the tumour was present in 2011.
The Federal Court of Australia has in a number of cases considered the meaning of the expression “inability to obtain appropriate clinical management”. In Brew v Repatriation Commission [1999] FCA 1246, Sundberg J remarked (at [10]): “The word "inability" is directed to an objective barrier to obtaining treatment, such as the absence of medical officers, and not to a lack of willingness to obtain treatment”. This Tribunal has in previous decisions emphasised that the factor is concerned with the “inability to obtain" and does not invite an inquiry as to the appropriateness of the clinical management: see Millen and Repatriation Commission [2000] AATA 508 at [22] and Hay and Repatriation Commission [2009] AATA 883 at [35].
In Repatriation Commission v Money (2009) 173 FCR 410 a Full Court also considered the meaning of the expression “inability to obtain appropriate clinical management” in an SoP. Finn and Edmonds JJ remarked (at [42, 43, and 59]) that the expression “appropriate clinical management” goes beyond the positive treatment of an injury or disease and includes advice that could be given to a patient such as to desist from certain activities or to take other steps as measures to preclude aggravation or exacerbation of an injury or disease; and that the inability to obtain appropriate clinical managementmust occasion the material contribution to, or aggravation of, the injury or disease. Dowsett J (at [87]) emphasised that there must be the identification of the connection between the injury or disease and the service, which must have a factual basis demonstrated in the material.
I do not accept that there is evidence before the Tribunal of there being an “inability to obtain appropriate clinical management” during the defence service of the applicant and her non-warlike service on Operation Catalyst. There is evidence that there was a medical officer review after the audiogram testing in 2005.[41] Dr Dreves was unable to highlight a particular consultation when the condition should have been diagnosed. I give great weight to the opinions of Dr Atkinson, a senior specialist, and Dr Bordujenko, who both reviewed the relevant documentation and gave cogent reasons for their conclusions. The conclusion of Dr Atkinson that the applicant had reasonable medical investigations of the reported symptomology was not challenged in cross-examination or contradicted by any other medical witness. I have earlier mentioned that Dr Atkinson commented that the applicant had a “constellation of symptoms”. The report of Dr Atkinson was filed in the Tribunal on 22 September 2016 and the applicant had sufficient time to obtain a report to contradict the report of Dr Atkinson. Dr Brodujenko has noted that the headaches and dizzy spells of the applicant occurred in the setting of respiratory and gastrointestinal conditions.
[41] Exhibit C, Service Medical Records Part 2, at p. 395;
I should mention that the opinion of Dr Dreves that there was an inability to obtain appropriate clinical management was based on the assumption that the diagnosis of the condition of the applicant was in 2003. Dr Amato did not have the benefit of seeing the complete medical documentation including the Five Yearly Preventative Health Statement in which the applicant answered “no” to the question, “Do you experience any problems with your hearing”, as well as the 2010 audiogram report. I cannot prefer the opinion of Dr Amato to that of Dr Atkinson who reviewed the complete medical documentation. Dr Rushbrook quite properly stated that she was unable to hypothesise that in 2005 or 2007 radiology testing would have revealed an acoustic neuroma. Professor Panizza did not point to an instance in which there was an inability to obtain appropriate clinical management of the applicant.
This Tribunal is bound to ensure that any possible ground upon which an applicant can succeed is thoroughlyexamined. In Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 Brennan J (as he then was) remarked: "If the material is inadequate .... The A.A.T. may request or itself compel the production of further material". In my opinion this is such a case where the material before the Tribunal is inadequate. The inquisitorial role of this Tribunal was affirmed by the decision of the Full Court of the Federal Court of Australia in Benjamin v Repatriation Commission [2001] FCA 1979 at [47]. A former President of this Tribunal has observed that the task of this Tribunal is to examine the decision under review “thoroughly and with care – often in a way that the original decision maker could not undertake”: see Justice Garry Downes AM, "Why Does Australia Have a General Review Tribunal", Address to the New Zealand Chapter of the Council of Australasian Tribunals, 7 October 2005 (p. 8).
There appears to have been no investigation of the exposure of the applicant to ionising radiation. This is even though the applicant has referred to the issue of exposure to radiation in a number of documents. In the injury or diseases sheet that was received by the Department of Veterans’ Affairs on 3 June 2015 she had referred to “possible RF exposure whilst serving on HMAS Canberra and HMAS Tobruk throughout my 20 yr Naval career”.[42] In another injury or diseases sheet in which she had reported her tinnitus condition she had referred to “radio frequency exposure”.[43]
[42] Exhibit A, T-Documents, T8, at p. 28.
[43] Exhibit A, T-Documents, T11, at p. 34.
The determination of 22 July 2015 contains the conclusion: “The evidence on file shows you do not satisfy factor (a) as defined above”. There is no document in the T-Documents which outlines the level of exposure of the applicant to ionising radiation. Dowsett J in Repatriation Commission v Money (2009) 173 FCR 410 at 430, emphasised that the Statement of Principles may help the Commission to identify relevant aspects of the material which it must consider. The Statement of Principles requires consideration of the cumulative equivalent dose of ionising radiation to the affected vestibulocochlear nerve at least five years before the clinical onset of the condition. It is difficult to pinpoint when there was the clinical onset of the condition but Dr Atkinson considered that it was plausible that the condition was present in 2010. It is noted that the SoP No 29 of 2011 that would apply in respect of Operation Catalyst requires a lower level of exposure to ionising radiation than SoP No 30 of 2011. It was necessary for there to be some investigation to ascertain the level of exposure of the applicant to ionising radiation.
The determination of 22 July 2015 contains a reference to SoP No 29 of 2011. The respondent has quite rightly adverted to the fact (in connection with factor 6(b) of that SoP) that the service of the applicant was relatively brief. The greater part of the service of the applicant would concern SoP No 30 of 2011: however, this SoP is not referenced in the decision of 22 July 2015.
The application of factor 6(a) in both SoPs was not considered in the reviewable decision of 4 March 2016 because this issue was not then raised by the applicant. The applicant did not also raise this issue before the Tribunal. In this context it is important to emphasise that the Tribunal is not bound by any concessions made by any party in endeavouring to reach what is often referred to as the "correct or preferable decision”.
DECISION
I have decided that the appropriate course of action is to remit this application to the respondent for further consideration under s 42D of the Administrative Appeals Tribunal Act 1975 (“AAT Act”). This would ensure that there is some consideration of the exposure of the applicant to ionising radiation during her relevant periods of service.
In making the decision to remit this application, I accorded considerable weight to specialist opinion that the tumour was present during the full-time military service of the applicant: this information was not available to the original decision maker.
I have, in accordance with s 42D(5) of the AAT Act, specified a period of 90 days in which the respondent is required to reconsider the decision. If necessary, this period of time can be extended under s 42D(6) upon application to the Tribunal.
I certify that the preceding 119 (one hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
.....................[SGD]..................................
Associate
Dated: 21 December 2018
Dates of hearing: 19 and 20 December 2017
Advocate for the Applicant:
Solicitors for the Respondent
Counsel for the Respondent:
Mr Rod Thompson
Mr Michael Quinn
Moray & Agnew Lawyers
Mr Charles Clark
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